State v. Irizarry

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,v.WILFREDO IRIZARRY, DEFENDANT-APPELLANT.

On appeal from Superior Court of New Jersey, Law Division, Hudson County, No. 04-05-0705.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted January 16, 2008

Before Judges Wefing, R. B. Coleman, and Lyons.

Tried to a jury, defendant was convicted of second-degree robbery, N.J.S.A. 2C:15-1, and first-degree kidnapping, N.J.S.A. 2C:13-1(b). The jury found defendant not guilty of possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(a), and unlawful possession of a weapon, N.J.S.A. 2C:39-5(b). The trial court sentenced defendant to fifteen years in prison for kidnapping and a concurrent five years for robbery. Both sentences were subject to the provisions of the No Early Release Act, ("NERA"), N.J.S.A. 2C:43-7.2. Defendant has appealed his convictions and sentence. After reviewing the record in light of the contentions advanced on appeal, we affirm.

Defendant raises the following arguments on appeal.

POINT I.

THE DEFENDANT'S ORAL STATEMENTS MADE IN HIS BEDROOM TO OFFICER QUISH AND HIS SUBSEQUENT WRITTEN STATEMENT MADE TO DETECTIVE GUY SHOULD HAVE BEEN SUPPRESSED.

(A)

THE TRIAL COURT ABUSED ITS DISCRETION IN APPLYING THE EMERGENCY AID DOCTRINE BECAUSE OFFICER QUISH KNEW OR SHOULD HAVE KNOWN THAT THE DEFENDANT WAS A SUSPECT IN THE POKER ROOM ROBBERY WHEN HE ENTERED THE DEFENDANT'S BEDROOM.

(B)

THE TRIAL COURT ERRED IN FINDING THAT THE ENVIRONMENT AT THE POLICE STATION WAS NON-COERCIVE BECAUSE DETECTIVE GUY ENGAGED IN "UNFAIR MEANS" BY URGING THE DEFENDANT TO GIVE "HIS SIDE OF THE STORY" TO THE POLICE.

POINT II.

THE DEFENDANT'S CONVICTION FOR FIRST DEGREE KIDNAPPING ON COUNT TWO SHOULD BE REVERSED BECAUSE THE TRIAL COURT COMMITTED PLAIN ERROR AND IMPROPERLY LINKED THE CRIMINAL CULPABILITY OF THE DEFENDANT WITH THE CRIMINAL CULPABILITY OF HIS CO-DEFENDANTS BY FAILING TO INCORPORATE THE FACTS OF THE CASE INTO ITS ACCOMPLICE LIABILITY CHARGE. (NOT RAISED BELOW)

POINT III.

THE TRIAL COURT ABUSED ITS DISCRETION AND APPLIED AN ERRONEOUS STANDARD IN DENYING THE DEFENDANT'S MOTION FOR A NEW TRIAL.

POINT IV.

THE 15 YEAR BASE CUSTODIAL SENTENCE IMPOSED ON THE DEFENDANT'S CONVICTION FOR FIRST DEGREE KIDNAPPING WAS MANIFESTLY EXCESSIVE BECAUSE THE COURT ABUSED ITS DISCRETION IN DENYING DEFENSE COUNSEL'S MOTION TO SENTENCE THE DEFENDANT ONE DEGREE LOWER.

In November 2003 members of the Jersey City Police Department were investigating an armed robbery that had taken place during a poker game. The investigation led them to conclude that Shevon Stewart and Darryl Stewart had participated in that robbery, and arrest warrants had been issued for Shevon Stewart. Officers Quish and Walsh were looking for an individual with the street name "Ketchup" for they had reason to believe that Ketchup would know where to locate Shevon Stewart. On November 14, 2003, Officers Quish and Walsh interviewed two of the victims of the robbery, believing they could provide information about Ketchup. Based upon the information they received, the two officers went to the neighborhood of Gautier and West Side Avenues in Jersey City. Officer Quish was familiar with the area and some of its residents because he had been stationed there as a patrol officer. After speaking with several individuals, the officers learned that Ketchup was defendant and where he lived. The officers proceeded to his house, and defendant's father opened the door.

The officers identified themselves and said they wanted to speak to defendant. Mr. Irizarry let the officers into the house but said his son was sleeping. He led them to the door of defendant's bedroom and knocked for several minutes on the door. Defendant awoke and opened the door. The police again identified themselves and said they wished to speak to him a few minutes about Shevon Stewart. Defendant admitted the police to his bedroom. After a few brief questions about Shevon Stewart, defendant spontaneously told the police about a robbery he said he had committed a few days earlier with Shevon Stewart. Officer Walsh immediately advised defendant of his Miranda rights, Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed. 2d 694 (1966), and asked if he would be willing to go to the police station with them to provide a statement. Defendant agreed to do so. Until defendant made his statement to the two officers in his bedroom, they had had no reason to consider him a suspect in any respect.

At the station, Officer Quish consulted with Detective Guy about what defendant had told them. Detective Guy then met with defendant and again advised him of his Miranda rights. Defendant executed a written waiver. He then provided a statement which served as the basis of the charges for which defendant was tried and convicted.

In his statement, defendant recited that on the evening of November 8, 2003, he and Shevon and Darryl Stewart were riding around in a car and saw a man (later identified as Milad Ghaly) walking by himself. He said that he and Shevon approached Ghaly and pulled him off to the side; Shevon showed Ghaly a gun, and defendant went through Ghaly's pockets and pulled out his wallet. Shevon retrieved Ghaly's ATM card, and the two men then put Ghaly into the car in which Darryl Stewart was waiting. They drove to a nearby ATM machine on Kennedy Boulevard. Defendant said he took Ghaly's ATM card and tried three times to withdraw money but was unsuccessful. He returned to the car, and Shevon then forced Ghaly to accompany him to the ATM machine. Again, the machine would not work. They forced Ghaly to return to the car and drove to another machine. They were again unsuccessful in obtaining money, and this time the machine did not return the card. The three men then abandoned the car and split up. During the course of the robbery, Shevon Stewart struck Ghaly about the head with the gun.

At defendant's trial, Officer Darren Sorrentino of the Jersey City Police Department testified that he was on duty that night and received a call of a robbery in progress. He responded to the scene and found a man, later identified as Ghaly, who was bleeding from his head; his glasses were broken and he was upset. Officer Sorrentino arranged for an ambulance to take Ghaly to the hospital to treat his injuries.

The State also presented the testimony of Gwendolyn Fowler. She said she had been driving on Kennedy Boulevard when she passed the first ATM machine. She testified that she saw two men inside the booth, one with his arm around the neck of the other. When she saw someone with a cell phone, she asked that person to call the police. When she arrived home, she herself called the police and learned that someone had already contacted them.

Prior to defendant's jury trial getting underway, the trial court held a Rule 104 hearing to determine whether the statements made by defendant, i.e., the statement to Officers Quish and Walsh in his bedroom and the later statement he gave to Detective Guy, would be admissible at trial. After hearing from Officer Quish and Detective Guy, the trial court ruled that both statements could be admitted at defendant's trial.

Defendant's first argument on appeal contends the trial court erred in this ruling. The law is clear that "the prosecution may not use statements, whether exculpatory or inculpatory, stemming from custodial interrogation of the defendant unless it demonstrates the use of procedural safeguards effective to secure the privilege against self- incrimination." Miranda v. Arizona, supra, 384 U.S. at 444, 86 S.Ct. at 1612, 16 L.Ed. 2d at 706. Custodial interrogation is questioning "while in custody at the station or otherwise deprived of . . . freedom of action in any significant way."

Id., 384 U.S. at 477, 86 S.Ct. at 1629, 16 L.Ed. 2d at 725. The determination whether a particular situation may fairly be characterized as "custodial" can only be reached by examining the "totality of the objective circumstances attending the questioning." State v. Smith, 374 N.J. Super. 425, 430 (App. Div. 2005).

A reviewing court considering a trial court ruling on the admissibility of a defendant's statement must determine "whether the findings are supported by credible evidence and the legal conclusions are valid." Id. at 430. A reviewing court should give deference to those findings "influenced by the judge's opportunities to hear and see the witnesses and to have the 'feel' of the case." Ibid.

Turning to defendant's argument, we reject it. Initially, we are satisfied that defendant has mischaracterized the trial court's ruling. The trial court did not, as defendant contends, rest its decision upon the emergency aid doctrine, a recognized exception to the Miranda doctrine. State v. Boretsky, 186 N.J. 271, 282-83 (2006). Rather, the trial court correctly analyzed the issue under the framework of an investigatory, or so called Terry stop. Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed. 2d 889 (1968). "Miranda is not implicated when the detention and questioning is part of an investigatory procedure." State v. Pierson, 223 N.J. Super. 62, 66 (App. Div. 1988).

Further, we are satisfied that the trial court properly applied the appropriate legal principles to the factual situation presented. As to the first statement volunteered to Officers Quish and Walsh, there is no testimony that defendant was a suspect in any matter when the officers went to his house; nor is there any testimony that could reasonably lead to a finding that the officers gave defendant the impression he was a suspect. They were looking for an entirely different individual in connection with an entirely different crime. As to the second statement, the trial court set forth in detail the circumstances under which defendant provided a written statement to the police. It is clear that defendant was fully advised of his rights and made a determination to waive those rights and to provide a statement about his involvement in the robbery of Mr. Ghaly. According to the officers, defendant appeared relieved to get the matter "off his chest." The trial court's ruling that this second statement was admissible was entirely correct.

Defendant's second argument revolves around that portion of the trial court's charge that dealt with accomplice liability. He contends that the trial court's charge simply repeated the model jury charge on accomplice liability and did not tailor the charge to facts of this case. Defendant made no objection to the charge at trial and thus must demonstrate that the charge given to the jury constituted plain error. R. 2:10-2.

Defendant contends that the trial court's charge was erroneous "because it inextricably linked the criminal liability of the accomplice (i.e., defendant) with the criminal liability of the principal (i.e., Shevon Stewart)." Clearly, a trial court must explain to a jury that a defendant's culpability must be measured by the defendant's own intent, not the intent of a co-defendant. State v. Bielkewicz, 267 N.J. Super. 520, 528 (App. Div. 1993). The jury must be told that to find a defendant guilty as an accomplice, it must be satisfied beyond a reasonable doubt that the defendant "shared in the intent which is the crime's basic element, and at least indirectly participated in the commission of the criminal act." Ibid. (quoting State v. Fair, 45 N.J. 77, 95 (1965)).

The thrust of defendant's argument is that the trial court did not adequately explain to the jury the significance of the fact that he was not armed during the encounter with Ghaly. We disagree. The jury by its verdict acquitted defendant of first-degree robbery but convicted him of second-degree robbery. In addition, it acquitted him of the two counts relating to possession of a weapon. Finally, whether defendant was armed during the encounter is immaterial to his conviction for first-degree kidnapping. Under N.J.S.A. 2C:13-1(c), kidnapping is a crime of the first degree; it is lowered to a crime of the second degree if the victim is released "unharmed and in a safe place prior to apprehension." Ghaly was not released unharmed, however, and defendant was properly convicted of first-degree kidnapping.

Defendant's next argument is that the trial court, in denying his motion for a new trial, did not apply the standard set forth in Rule 3:20-1, that such a motion should be granted "if required in the interests of justice." The premise for this portion of defendant's argument is his contention that those actions of the trial court with which we have already dealt in this opinion constituted error. Because we have concluded that there was no error, the interests of justice did not require that the trial court grant defendant's motion for a new trial.

Defendant's final argument is that his sentence is manifestly excessive; he asserts that the trial court should have sentenced him as if he had been convicted of second-degree kidnapping, not first-degree kidnapping. A court may downgrade an offense for sentencing purposes if it is "clearly convinced that the mitigating factors substantially outweigh the aggravating factors and where the interest of justice demands." N.J.S.A. 2C:44-1(f)(2). We find no error in the trial court's careful explication of its reasons for concluding that the aggravating factors "substantially outweigh" the mitigating. Further, we note that despite that finding, the trial court imposed the minimum terms for these offenses. N.J.S.A. 2C:13-1(c) (providing that a defendant convicted of first-degree kidnapping shall "be sentenced to an ordinary term of imprisonment between fifteen and thirty years"; N.J.S.A. 2C:43-6(a)(2) (setting a range of five and ten years imprisonment for convictions of second-degree crimes).

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